Confused Executor of a Will

The thought of being appointed as an executor in a loved ones’ Will can be a daunting proposition, particularly for those who have not acted as an executor before. It is important to bear in mind that, in most cases, the deceased appointed you because they trust you to fulfil their final wishes.

If you have been appointed as someone’s executor, remember, there is help available.

The vast majority of people appointed as an executor instruct a lawyer to assist them with obtaining a Grant of Probate and administering the estate. The extent to which you instruct the lawyer is up to the individual executor. Some executors simply require assistance to obtain a Grant of Probate whilst others, instruct a lawyer with respect to the administration of the estate generally.

Do I have to act as Executor?

The good news is, if you don’t want to be an executor of an estate, then you can say no.  This is called renouncing your appointment as executor.

It is important to make the decision to renounce as quickly as possible, as once you start completing acts as the executor of the estate, it isn’t that easy to stop part way through.

What am I expected to do?

In a nutshell, an executor can be expected to attend to the following:

  • Organising the funeral;
  • Locating the Will and notifying beneficiaries;
  • Obtaining a Grant of Probate (if required);
  • Realising and protecting the assets (ie organising insurance if required);
  • Investing funds whilst the estate is being administered;
  • Determining and paying the deceased’s outstanding debts and liabilities, including the finalising tax returns for the deceased);
  • Transferring or selling assets;
  • Distributing the estate to the beneficiaries.

Whilst a solicitor can provide advice in relation to what steps are required to administer each specific estate, the following points may assist in understanding the broad steps involved.

Step 1:

First and foremost, the executor will need to locate the original Will.  Often, the solicitor who prepared the Will retains the original but, in some circumstances, that service is not offered, or the testator prefers to retain the original.

Either way, the original will be required to obtain a Grant of Probate. If the original Will cannot be located, a solicitor can assist the executor in locating it.

In some circumstances, a copy of a Will can be admitted to Probate, but you should obtain legal advice in relation to this.

Once the Will has been located, it is important to keep it in the same state as it was found. Do not remove staples or mark it in any way.

Step 2:

The next step is to determine the assets and liabilities of the deceased.

Not all assets held by the deceased will form part of their estate, so it is important to obtain advice in relation to estate vs non-estate assets. Only estate assets will be dealt with in accordance with the Will.

Depending on the executor’s relationship with the deceased, they may have a comprehensive understanding of the deceased’s assets and liabilities. In other circumstances, the executor may need to piece together the jigsaw puzzle that is the deceased’s estate.

In addition to contacting the organisations with which the deceased held assets and liabilities (eg banks and share registries), the executor will need to notify various other organisations that the deceased has died. Each estate is different, but these generally include:

  • Medicare;
  • Centrelink;
  • Australian Taxation Office;
  • Australian Electoral Commission;
  • Service SA;
  • Local council;
  • Health insurers;
  • GP clinic and other medical professionals involved in the deceased’s care.

Step 3:

Once the executor has an understanding of the deceased’s estate, they need to determine whether a Grant of Probate will be required.

Not all estates require a Grant of Probate so it is important to obtain advice in relation to whether it is required as this could save the estate money.

If a Grant of Probate is required, the Application will need to be made to the Supreme Court. A solicitor can assist you with this Application.

Step 4:

Once the Grant of Probate has been issued by the Supreme Court, the executor can start calling in the assets and distributing the estate.

Do I need to engage an estate lawyer?

If you have been appointed as an executor, it is important to seek advice from an experienced estate lawyer to assist with the process and to avoid personal liability for acting outside the terms of being an executor.

We can help guide you through the process and give you the advice you need.  Speak to one of our experienced Wills & Estate Lawyers today on 8357 7611 or book an appointment now.